Gibbs v. Deere & Company et al
PROTECTIVE ORDER. Signed by Honorable Susan O. Hickey on November 16, 2020. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
DARRYL LERAY GIBBS, Individually
and as Personal Representative of the
Estate of Darryl Jackson and on behalf of
Darryl Jackson’s surviving heirs and
Statutory wrongful death beneficiaries,
CASE NO. 1:19-cv-01021
DEERE & COMPANY d/b/a JOHN DEERE,
GERINGHOFF MAUNFACTURING LLC,
GERINGHOFF DISTRIBUTION LLC,
GOLDMAN EQUIPMENT, L.L.C.
STIPULATED PROTECTIVE ORDER
THIS MATTER is before the Court on the parties’ Joint Motion for Entry of Protective
Order. Pursuant to applicable Federal Rules of Civil Procedure, and being otherwise advised of
the premises herein, the Court hereby GRANTS the Joint Motion for Entry of Protective Order
and enters this Protective Order as follows:
THIS Stipulated Protective Order is made by and among Plaintiff, Darryl Leray Gibbs,
individually and as Personal Representative of the Estate of Darryl Jackson and on behalf of Darryl
Jackson’s surviving heirs and statutory wrongful death beneficiaries, and Defendants, Deere &
Company, and Geringhoff Manufacturing, LLC, collectively.
If any individual or entity other than the parties named above is added to this lawsuit after
the entry of this Stipulated Protective Order by the Court, such individual or entity may file a
written stipulation with the Court specifically agreeing to be bound by the terms of this Stipulated
Protective Order. Therefore, “parties” will include all present signees to this Stipulated Protective
Order, as well as all individuals and entities who may stipulate to be bound by its provisions in the
WHEREAS, the parties are in need of discovery in this action in order to prosecute and
defend the claims made herein; and
WHEREAS, the parties seek to prevent undue or unwarranted disclosure of confidential
personal, commercial, financial, proprietary, copyrighted, trademarked, patented, trade secret and
design information and/or materials which may be divulged pursuant to discovery in this action;
WHEREAS, the parties hereto desire to facilitate discovery and maintain the
confidentiality of such information.
NOW, THEREFORE, in consideration of the mutual promises herein and pursuant to the
Federal Rules of Civil Procedure, the parties agree as follows:
Any party may designate and visibly mark as “CONFIDENTIAL” any document,
material, or information or group of documents, materials, or information which it in good faith
believes contain confidential personal, commercial, financial, proprietary, copyrighted,
trademarked, patented, trade secret and/or design information, or any other documents, discovery
and answers for which a party chooses to assert confidentiality (the “Protected Information”), and
produce such Protected Information without waiving any applicable privilege or ground for
objection. Such designation constitutes a representation by the party that it has a reasonable, good
faith basis to believe that the Protected Information so designated is, in fact, confidential
information appropriate for protection as confidential and that it is entitled to that protection.
"CONFIDENTIAL" except in compliance with the provisions herein and as follows:
1. To the requesting party and the party’s attorneys, associated attorneys, employees,
and staff and IT professionals and investigators;
2. To the officers, directors, and employees of the requesting party (including in-house
counsel) to whom disclosure is reasonably necessary for this litigation;
3. To experts or consultants retained or employed by the requesting party in
connection with this action, but only to the extent deemed by that party’s counsel
to be reasonably necessary or appropriate for the proper representation of their
clients in this action;
4. To court reporters and deposition videographers and their staff, professional jury or
trial consultants, mock jurors, and other professional vendors to whom disclosure
is reasonably necessary or appropriate for this litigation;
5. To witnesses for deposition or trial or in preparation for deposition or trial if counsel
has a good faith basis to believe the witness has knowledge of the subject matter of
the Protected Information or otherwise should be provided the information for
purposes of developing their testimony or exploring their knowledge; such
witnesses shall not be sent copies of confidential documents or information,
nor may they retain such copies; and
6. To the Court and its personnel;
7. To other persons as may be designated by written stipulation of counsel for the
designating party; and
8. By specific order of the Court.
Unless otherwise permitted by this Protective Order, all Protected Information
designated as "CONFIDENTIAL": (a) shall not be disclosed or used for any purpose other than
for prosecuting, defending, or attempting to settle this litigation; (b) shall not be disclosed to or
used by any third party, unless there is an order of this Court to the contrary; and (c) shall not be
filed with the Court, as an exhibit, as part of a deposition transcript, pleading, motion,
memorandum, or otherwise, unless such matter is filed in the manner described in paragraph 10 of
this Protective Order (and in accordance with any applicable Case Management Order issued by
the presiding judge).
“CONFIDENTIAL” or information derived therefrom shall be advised that such material and/or
information is being disclosed pursuant and subject to the terms of this Protective Order and may
not be disclosed other than pursuant to the terms hereof. In the event any party wishes to disclose
any Protected Information, or provide copies of any document(s) or transcript(s), designated as
"CONFIDENTIAL" to an outside expert, consultant, or witness as permitted by this Protective
Order, the outside expert, consultant, or witness to whom such Protected Information is to be
provided shall be required to sign, prior to receiving the Protected Information, an agreement in
the form attached hereto as Exhibit “A,” which agreement shall be retained by counsel for the party
disclosing the Protected Information, but a witness in deposition shall not be required to sign the
When oral information is given at a deposition and when a party’s counsel deems
that the answer to a question will result in the disclosure of Protected Information as described
a. Any party’s counsel may state on the record that the documents referred to
or the testimony elicited constitutes Protected Information and that the
transcript of that portion of the deposition should be filed in the manner
b. Any party’s counsel may request that all persons, other than the court
reporter, videographer, counsel for the parties, a representative of each
party, and the witness, leave the room during the confidential portion of the
deposition. The failure of such other persons to comply with a request of
this type shall constitute substantial justification for the party’s counsel to
advise the witness not to answer a question seeking revelation of Protected
c. Any party’s counsel may also designate any portion of a deposition
transcript as CONFIDENTIAL. Such designation shall be made within
twenty-one (21) days after receipt of the transcript. All information
contained in the transcript shall be deemed Protected Information until the
expiration of this twenty-one (21) day period.
If the requesting party objects in writing to the designation of any document,
information, or portion of a deposition transcript as “CONFIDENTIAL” by a designating party,
that requesting party shall, after conferring with the designating party’s counsel to resolve the
dispute, have the burden of filing a motion with the Court for a determination as to whether such
material is “CONFIDENTIAL” within thirty (30) days following service of the document or
information bearing the disputed designation, if it elects to at all. Any such motion must be made
such that the Court may consider the motion no later than thirty days before trial. The party seeking
to protect the document or material has the burden of proof to show that such document or material
deserves to be protected from re-disclosure under applicable law.
Pursuant to and consistent with Federal Rules of Evidence 502(d), if Protected
Documents or any other document or information subject to a claim of attorney-client privilege,
work-product immunity, trade secret protection, or any other relevant privilege or immunity under
relevant case law and rules, production of which should not have been made to any party, is
inadvertently produced to such party, such production shall in no way prejudice or otherwise
constitute a waiver of, or estoppel as to, any claim of privilege, work product, trade secret
protection, or any other ground for withholding production to which any party producing the
documents or information would otherwise be entitled. In the event that a party discovers that it
has received either attorney-client privilege or work-product documents, it will bring that fact to
the attention of the Producing Party immediately upon discovery.
Any such inadvertently
produced materials shall be returned promptly to the Producing Party upon request and all copies
destroyed upon request, and no use thereof shall be made by the party to whom such documents
or information were inadvertently produced, except to the extent necessary to present the issues
concerning privilege to the Court.
Failure to denominate documents or information as “CONFIDENTIAL” in the
foregoing manner shall not constitute a waiver by any party of the right to designate the document
or information as “CONFIDENTIAL” if the failure is inadvertent. Counsel, upon notification of
the designation, must make timely reasonable efforts to assure the material is treated in accordance
with the provisions of this Protective Order, but is not responsible for re-disclosure of the document
made prior to receipt of said designation.
Nothing in this Protective Order shall restrict the use of any Protected Information
at any hearing or the trial of this cause; provided that any party reserves the right to request that
the Court utilize appropriate procedures for the protection of Protected Information to prevent
public disclosure of Protected Information.
In the event a party wishes to use any CONFIDENITIAL Information in or
appended to any affidavits, declarations, briefs, memoranda of law, or other papers filed in this
litigation, the party shall do one of the following: (1) with the consent of the producing party, file
only a redacted copy of the information; (2) where appropriate (e.g., in connection with discovery
and evidentiary motions) provide the information solely for in camera review; or (3) file such
information under seal with the court consistent with the sealing requirements of the court. The
clerk of this court is directed to maintain under seal all documents, transcripts of deposition
testimony, answers to interrogatories, admissions, and other papers filed under seal in this
litigation that have been designated, in whole or in part, as Classified Information by any party
to this litigation consistent with the sealing requirements of the Court.
In the event any third party seeks discovery of the Protected Information designated
as "CONFIDENTIAL" under this Protective Order from a party hereto (or from an expert or
consultant employed by such party), the party from whom the discovery is sought shall give prompt
notice to the designating parties by notifying the parties’ counsel in writing in order that the party
may have an opportunity to intervene in opposition to such discovery.
The terms of this Protective Order are applicable to information produced by a Non-
Party in this action and designated as “CONFIDENTIAL.” Such information produced by NonParties in connection with this litigation is protected by the remedies and relief provided by this
Order. Nothing in these provisions prohibits a Non-Party from seeking additional protections.
Upon the decision in this action becoming final, the action being settled, or, should
a final decision be appealed by any party to this action, upon the completion of all appeals herein,
all Protected Information designated as "CONFIDENTIAL", including all copies, abstracts,
compilations, summaries, memorandums, or transcripts reproducing or capturing any of the
Protected Information, shall be, at the election of the receiving party, either returned to the party
producing such Protected Information at the producing party’s expense or destroyed. If the
receiving party elects to have the receiving party destroy the Protected Information, the receiving
party and its counsel shall certify in writing that all Protected Information has been destroyed. The
parties may maintain their attorney notes and copies of pleadings refencing the protected
information, but will continue to maintain the confidentiality of those documents.
Counsel for each party obtaining Protected Information shall maintain and retain
all agreements in the form of Exhibit “A” hereto and, for good cause shown, such counsel shall be
required to produce such agreements to any other party in the event a reasonable basis exists for
the belief that this Protective Order has been violated, but in the case of consulting only experts,
upon demand the agreement shall only be provided to the Court for in camera inspection.
Within sixty (60) days after the conclusion of this litigation, counsel for each party
shall, at the written request of any other party, provide the requesting party’s counsel with a list of
all persons who received Protected Information designated as “CONFIDENTIAL” during the
course of this litigation, except for their internal staff and consulting only experts.
In the event anyone shall breach or violate, or threaten to breach or violate, any
terms of this Protective Order, the designating party may immediately apply to obtain injunctive
relief against any such person breaching or violating, or threatening to breach or violate, the terms
of this Protective Order. In the event the designating party makes such an application for injunctive
relief, the respondent person subject to the provisions of this Protective Order shall not be able to
employ as a defense that there is an adequate remedy at law. Any breach or violation of this
Protective Order shall subject the responsible person or party to any remedy permitted by law.
This Protective Order shall not be construed as an exclusive remedy or as a waiver of the
designating party’s right to seek further redress for a breach of this Protective Order.
This Protective Order shall not be construed:
1. to broaden the permissible scope of discovery in this action;
2. as a waiver of any party’s right to object to the furnishing of discovery;
3. as an admission by any party that any particular material contains or reflects
trade secrets, proprietary or commercial information, or other confidential
4. to prejudice any party’s right to apply to the Court for a Protective Order or
modification of this Protective Order.
Each of the firms and parties named above undertakes to abide by and be bound by
the provisions of this Protective Order and to use due care to see that its provisions are known and
adhered to by those under its supervision or control.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
/s/ John M. Padilla
Attorneys for Plaintiff
/s/ David A. McFarland
Attorneys for the Geringhoff entities
Dated: September 28, 2020
Dated: September 28, 2020
/s/ Randy P. Murphy
Attorneys for Goldman Equipment, L.L.C.
/s/ Christen E. Luikart
Attorneys for Deere & Company
Dated: September 28, 2020
Dated: September 28, 2020
PURSUANT TO STIPULATION, IT IS SO ORDERED, on this the 16th day of November,
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
I understand that confidential documents and/or information are being provided and
disclosed to me solely for purposes related to Case No. 1:19-cv-01021-SOH, Darryl Leray Gibbs,
Individually and as Personal Representative of the Estate of Darryl Jackson and on behalf of Darryl
Jackson’s surviving heirs and Statutory wrongful death beneficiaries vs. Deere & Company d/b/a/
John Deere and Geringhoff Manufacturing, LLC pending in the United States District Court for
the Western District of Arkansas, El Dorado Division. I have been advised that such confidential
documents and the information contained therein may not be disclosed or used for any purpose
whatsoever other than in connection with my acting as an expert, consultant, or witness or other
capacity in this case and that such confidential documents and the information contained herein
may not be disclosed or shared with any other person or entity.
I acknowledge receipt of a copy of the Protective Order in the above-referenced case and I
agree to its terms. I have been advised that any unauthorized use or disclosure of such Confidential
Information may subject me to sanctions by the Court and I submit myself to the jurisdiction of
the above-referenced Court with regard to any dispute regarding my use or disclosure of such
Confidential Information. I will destroy or return all Confidential Information that comes into my
possession to the counsel who provided it to me at the conclusion of this litigation and will not
retain a copy of such information in any other format (written notes, copied files, etc.).
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